As he launched a 2020 presidential bid, former New York City Mayor Michael Bloomberg gave an apology of sorts for his controversial “stop-and-frisk” program. Is Bloomberg sincere in his regret, or is this just a political campaign conversion?
To answer this question, it is worth explaining why the stop-and-frisk program was ruled unconstitutional. When U.S. Judge Shira Scheindlin struck down the program in August 2013, the political and media establishment in New York City was aghast. It may have been the one issue since the September 11, 2001, terror attacks on which the talking heads of CNN, MSNBC, and Fox News were in complete agreement. They uniformly denounced Scheindlin’s ruling. The city’s editorial pages were nearly unanimous in condemning the judge’s action.
It was also obvious, based on their comments, that not a single critic was familiar with the contents of the class action lawsuit and that not one had read Scheindlin’s 200-page ruling.
Admittedly, I was taken aback at the criticism I received from the political left and right and the liberal and conservative media when I applauded the ruling as a victory for constitutional rights. Nonplussed, Bloomberg argued the stop-and-frisk program should be kept even though it had been ruled unconstitutional.
Scheindlin, who was nominated to the bench in 1994 by President Bill Clinton, went into great detail in her opinion. Nineteen stop-and-frisk incidents were examined. Fourteen were found to be unconstitutional.
Here’s just one.
Leroy Downs was a black man in his 30s. One day, two plainclothes officers were driving an unmarked police sedan when they spotted Downs talking on a cell phone. The officers stopped the car and exited the vehicle. They made a beeline toward Downs, yelled an obscenity at him, and pushed him up against a fence. Without explaining why they approached him, announcing a probable cause, or requesting permission, they frisked him. The officers emptied Downs’ pockets and searched the contents of his wallet. Finding nothing, they left.
Leroy Downs was standing in front of his own home.
Police officers may stop someone in the commission of crime. The Supreme Court has ruled someone may also be stopped if there’s probable cause, which is “reasonable suspicion supported by … facts that criminal activity ‘may be afoot.’ ” There wasn’t any reasonable suspicion in the case of Leroy Downs.
Only in TV shows and movies may police officers stop someone based on a hunch or on intuition. In real life, no.
According to NYPD records, between 2004 and 2012 about 4.4 million stops were made. No weapons were found in 99.2 percent of the stops. In hundreds of thousands of stops, police admit there was no reasonable suspicion. Those were clearly unconstitutional stops. In others, they reported the suspicion as “furtive moments” or similar claims. In fact, “furtive movements” was the probable cause given in about 42 percent of the stop-and-frisk incidents.
During the trial, it was revealed what activity constituted “furtive movements,” as Scheindlin explained in her ruling:
Two officers testified to their understanding of the term “furtive movements.” One explained that “furtive movement is a very broad concept,” and could include a person “changing direction,” “walking in a certain way,” “[a]cting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth constantly,” “looking over their shoulder,” “adjusting their hip or their belt,” “moving in and out of a car too quickly,” “[t]urning a part of their body away from you,” “[g]rabbing at a certain pocket or something at their waist,” “getting a little nervous, maybe shaking,” and “stutter[ing].”
Another officer explained that “usually” a furtive movement is someone “hanging out in front of [a] building, sitting on the benches or something like that” and then making a “quick movement,” such as “bending down and quickly standing back up,” “going inside the lobby … and then quickly coming back out,” or “all of a sudden becom[ing] very nervous, very aware.” If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.
It’s not an overstatement to point out that two countries where similar stop-and-frisk programs were routinely used were the Soviet Union and East Germany.
Scheindlin’s ruling focused on Fourth-Amendment violations of unreasonable searches. It didn’t dwell on the racially biased aspects of stop-and-frisk, although they were present. Blacks and Hispanics were stopped at a higher rate than whites, and these stops were disproportionate to their populations. Several weeks before the Scheindlin ruling, Bloomberg announced he wanted blacks and Hispanics targeted in even greater numbers. He said, “[W]e disproportionately stop whites too much and minorities too little.” He argued that blacks and Hispanics commit more crimes and that data justifies their being stopped more often.
Bloomberg’s claim may or may not generally be true, but this much is certain. Bloomberg’s claim wasn’t accurate when it came to the people who were actually being stopped under the stop-and-frisk program.
According to the program statistics, whites were 40 percent more likely to have a weapon than blacks and 27 percent more likely than Hispanics. This NYPD data contradicts Bloomberg’s own rationale for targeting minorities.
The Second Circuit Court of Appeals stayed Scheindlin’s ruling and removed her from the case, but only because of an appearance of a conflict. The appeals court did not overturn her ruling. Retired judges and legal experts found fault with the Second Circuit’s removal of Scheindlin from the case. The appeals court subsequently reported it “[did] not find that there was any judicial misconduct or violation of any ethical duty” by Scheindlin.
The stop-and-frisk program came to end when Bloomberg left the mayor’s office. His successor, Bill de Blasio, vowed to drop the city’s appeal of Scheindlin’s ruling after he was sworn in as mayor.
Stop-and-frisk was a key tenet of the Bloomberg administration. It defies credulity to believe that nearly 18 years after the program was started and more than six years after it was ruled unconstitutional that Bloomberg is only now regretful. It’s more likely this is a last-minute campaign conversion as he panders for black and Hispanic votes in pursuit of the Democratic nomination.
Mark Hyman is the Emmy award-winning national investigative journalist for Sinclair Broadcast Group. He is also the author of the just-released book Washington Babylon: From George Washington to Donald Trump, Scandals that Rocked the Nation.